January 18, 2024

Legal implications of forced return and deportation for war migrants

This Article is written by Tisha Mehta, a 3rd-year law student at Gujarat National Law University

ABSTRACT

The last few years have witnessed a surge in war and a tremendous increase in war crimes like the Isreal – Hamas war, Ukraine – Russia war, civil unrest in Myanmar, Taliban reign in Afghanistan, etc. Due to bloodshed and widespread destruction, many citizens are leaving their nation out of necessity. So they take shelter and become migrants in other countries. But here comes the issue of forced migration and deportation of war victims which is practised by many countries to not face the burnt of it. This article discusses the legal framework and issues surrounding the same. 

  • INTRODUCTION

The forced return and deportation of war migrants carry profound legal implications that intersect with international human rights and refugee law. In the aftermath of armed conflicts, individuals fleeing conflict zones often seek refuge in foreign territories, invoking a complex web of legal principles and protections. This introduction explores the legal dimensions surrounding the forced return and deportation of war migrants, shedding light on the rights and safeguards established by international instruments.

In recent decades, the world has witnessed a surge in mass displacement due to armed conflicts, leading to an increased number of war migrants seeking safety and asylum across borders. The legal framework governing the treatment of these individuals is grounded in principles designed to protect human rights, prevent refoulement, and ensure dignified and just treatment for those escaping the ravages of war.

The issue of forced displacement has far-reaching consequences, especially for war migrants. A considerable proportion, reaching as high as 76%, of individuals who are forcibly displaced seek shelter in nations with lower or moderate income levels. This situation places significant pressure on the communities and resources of the host countries. The well-being and survival of these displaced populations frequently depend on the support offered by authorities, local communities, and humanitarian organizations.

Despite seeking safety, those forcibly displaced encounter various challenges, including protection issues and limited access to essentials such as shelter, food, and other basic services. The precarious legal status of war migrants in host countries exacerbates their vulnerability. The most vulnerable individuals, trying to avoid violence, exploitation, abuse, detention, or arrest, are often difficult to reach by humanitarian efforts.

Addressing durable solutions for forcibly displaced individuals stands as a primary challenge. Although returning voluntarily to their home countries is the ideal long-term resolution, factors like political instability, and incessant violence impede many from doing so. Forced displacement is undergoing a shift from a temporary to a prolonged phenomenon, with refugees experiencing an average duration of twenty years and internally displaced persons (IDPs) facing more than ten years on average. This prolonged displacement not only intensifies the challenges faced by individuals but also poses enduring difficulties for host communities and the humanitarian organizations striving to address the evolving needs of those displaced. Addressing these complex and protracted displacement issues requires concerted efforts on political, humanitarian, and international levels to find sustainable solutions and support the well-being of those affected.

  • LAWS DEALING WITH FORCED MIGRATION OR DEPORTATION

1. Refugee Law

The “1951 Refugee Convention and its 1967 Protocol” form the heart of international war migrant law. As per article 33 of the same, a nation cannot expel or return (“refouler”) a war migrant to their native territory where their fundamental human rights would be perilous based on factors such as race, religion, nationality, membership in a specific social group, or political opinion. The forced migration of war migrants without adequate examination of their asylum claims would constitute a breach of the “principle of non-refoulement” as per the said convention. 

2. International Humanitarian Law (IHL):

“IHL, including the Geneva Conventions and their Additional Protocols”, regulates the situations of armed conflicts. Civilians and other non-combatants are entitled to protection, and any forced return that places them at risk of serious harm or violates their fundamental rights may breach IHL. The principle of distinction specifically and clearly distinguishes civilians and armed personnel, and therefore forcing civilians back into a war zone violates IHL. 

3. Human Rights Law:

The “Universal Declaration of Human Rights” (UDHR) and other human rights international treaties protect the fundamental human rights of individuals like life, liberty, etc. even after The fundamental human right to life, liberty, and security of person, as articulated in “Article 3 of the Universal Declaration of Human Rights (UDHR)”, is recognized and protected. States are obligated to respect the PNR mentioned under human rights treaties. Thereby it ensures that war migrants are not returned to their native territories where their safety is in danger.

4. Customary International Law:

 Customary international law is based on persistent state practice and opinio juris (opinion of experts). For many years, PNR has become the accepted norm of customary international law, especially during times of war. CIL can apply even in the absence of specific treaty obligations, and they contribute to the overall framework protecting individuals in situations involving forced return. “Geneva IV” is considered constitutive and binding on signatories, especially in expanding legal duties for the occupying power. The distinction is made between constitutive elements, which apply to signatories, and declaratory aspects, which clarify customary law. The ban on large-scale deportations, as outlined in Article 49(1), is considered reflective of customary international law. The commentary on “Geneva IV” supports this stance, indicating that as of 1958, the provisions of Article 49 were acknowledged as part of international legal norms. The “Lieber Code from 1863”, a notable reference for military conduct, is cited as an early example where a sovereign nation formalized guidelines for its military’s behavior. Conversely, arguments, such as those put forth by the Supreme Court of Israel in the “1988 Affo case”, assert that Article 49 does not embody CIL principles but rather represents conventional international law.

5. International Criminal Law:

Under the “Rome Statute of the International Criminal Court (ICC)”, crimes against humanity, like forced migration and expulsion, can be established if it is carried out as part of a widespread or systematic assault directed at any normal civilian population. People liable for forced migration which constitutes a crime against humanity can be prosecuted by the ICC or by national courts providing universal jurisdiction in some rare cases. 

  • ISSUES WITH PRACTICAL APPLICATION

The practical application of legal principles related to forced return depends on the specific circumstances of each case. Individuals facing deportation may seek protection through asylum procedures, engage with international human rights bodies, or challenge deportation orders through legal channels. Regional human rights bodies and treaties may also play a role, depending on the jurisdiction. Legal advocacy and international pressure can be influential in preventing forced returns that would violate international law.

Forced evictions and deportations are tied to the broader problem of arbitrary displacement, which covers displacement due to conflict, environmental changes, disasters, and development projects. The “Guiding Principles on Internal Displacement” offer a versatile approach, allowing for a more flexible identification of individuals whose needs should be addressed. The use of the term “in particular” underscores the adaptable nature of the reasons behind displacement.

Despite the diverse reasons for internal displacement, global statistics often focus on Internally Displaced Persons (IDPs) uprooted by conflict and human rights violations. Some propose a narrower definition of IDPs limited to those displaced specifically by violence. IDPs are sometimes referred to as “refugees in all but name” due to similarities in their situations. The “International Committee of the Red Cross (ICRC)” aims to reduce the suffering of civilians stuck in armed conflict. While focusing on the civilian population as a whole, the ICRC recognizes the urgent needs of displaced persons and local communities, particularly IDPs facing material challenges. Refoulement, or forced return, occurs when a member state prevents a foreign individual from entering its territory. Expulsion involves prohibiting an individual already present on the territory from continuing their stay and sending them back to the border or native country. 

  • RIGHTS OF REFUGESS IN EXPLUSION

In cases of expulsion, certain guarantees are established to protect the rights of refugees and asylum seekers:

  1. Prohibition of Return to Threatened Territory: Nations are prohibited from forced migration of war migrants to their state of origin territory where their rights are endangered. 
  2. Exceptions with Due Process: Exceptions exist for individuals posing a danger to national security or convicted of serious crimes, but expulsion must follow due process.
  3. Right to Testify and Challenge: War migrants have the right to present evidence, appeal decisions, and seek legal admission in another jurisdiction.
  4. International Legal Framework: Articles 32 and 33 of the Refugee Convention and Article 13 of “International Covenant on Civil and Political Rights (ICCPR)” include safeguards for ensuring compliance. 
  5. Prohibition of Collective Expulsions: International law explicitly prohibits collective expulsions, as stated in international frameworks like “European Convention on Human Rights (ECHR)”, the “American Convention on Human Rights (ACHR)”, and others.
  6. Definition of Collective Expulsion by ECtHR: The “European Court of Human Rights (ECtHR)” defines “collective expulsion as the forced departure of aliens as a group, without a reasonable and objective examination of each individual’s case”.
  7. Non-Discrimination and Arbitrariness: Expulsions must not be discriminatory or arbitrary, ensuring that each case is examined individually.
  8. Right to Challenge Decisions: Individuals subject to expulsion have the right to challenge deportation decisions through an effective legal remedy.
  9. Judicial Review and Non-Discrimination: Mass expulsions, if conducted without individual determination justifying expulsion, without providing the opportunity for judicial review, or if discriminatory, are considered prohibited collective expulsions.

These guarantees aim to uphold the fundamental human rights of war migrants, ensuring that any expulsion is carried out with due process and individual consideration.

  • THE PRINCIPLE OF NON-REFOULEMENT (PNR)

“The Principle of Non-refoulement (PNR)” is a vital safeguard preventing the forced return of individuals when there is a credible risk of fundamental human rights violations, such as abuse, violence, etc. This principle is entrenched in international law, spanning “international human rights law (IHRL)”, “international refugee law (IRL)”, and certain extradition treaties, and is acknowledged as a customary norm.

The PNR translates the right of individuals to avoid being forcibly returned to perilous situations, offering concrete protection for those seeking asylum. It serves as a practical defense for the right to flee persecution without obligating States to grant asylum. Importantly, it prohibits the return of war migrants to a state where they fear persecution.

The PNR provides dual protection:

  •  It asserts the right of any individual entering another territory, even illegally, to request asylum and have their case considered.
  •  Despite asylum not being provided, authorities are prohibited from returning refugees to their native countries which might be dangerous for their safety. Forcing migration from the desired territory for asylum requires another country (a ‘safe third country’) that is okay to ensure protection to war migrants. 

This principle also imposes obligations on States to prevent the torture and ill-treatment of any person, regardless of their legal status within the territory. Despite its importance, the principle encounters challenges due to administrative practices, such as designating certain countries as “safe” without adequately considering individual circumstances. Additionally, there is a worrying trend of hastening the return of refugees after peace agreements, potentially before full security is restored.

However, the difficulty in finding second asylum countries has led to the practice of returning asylum seekers to their initial asylum country. As a result, many states are closing borders to avoid being the desired asylum country and this poses a threat for war migrants to seek asylum to safeguard themselves. 

  • EXAMPLES OF THE LEGAL FRAMEWORK OF PNR

PNR is expressly articulated in various international and regional instruments, underscoring its significance:

  • “ICCPR (International Covenant on Civil and Political Rights)” Article 13: Addresses the right of any refugee to seek asylum and not to be forcibly expelled to a territory where their rights may be violated
  • “1967 UN Declaration on Territorial Asylum” Article 3(1): Establishes principles related to territorial asylum and protection against refoulement.
  • “Final Act of the 1954 UN Conference Relating to the Status of Stateless Persons” Article 4: Addresses the protection of stateless persons and includes provisions related to non-refoulement.
  • “1969 OAU (Organization of African Unity) Convention Governing the Specific Aspects of Refugee Problems in Africa” Article 2(3): Focuses on refugee protection in Africa, emphasizing non-refoulement principles.
  • “1969 ACHR (American Convention on Human Rights)” Article 22(8): Articulates principles related to the right to seek asylum against refoulement in the American context.
  • “1984 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment” Article 3: Explicitly forbids the return of individuals to states where there is a credible risk of torture or other forms of ill-treatment.
  • Refugee Convention Article 33: Asserts that no ratifying states can forcibly return a war migrant to their native territories which can pose a danger to their lives. It includes specific conditions for exceptions related to security concerns or serious crimes.
  • PRINCIPLES FOR FORCED MIGRATION:
  1. Timely Information and Expression of Fears: Individuals facing transfer should receive timely information about the impending action. There should be an opportunity for these individuals to express their fears regarding the transfer. An independent and impartial body should be available to receive and consider these expressions of fear.
  2. Suspension of Transfer: If there are concerns raised by the individual facing transfer, there should be a provision for suspending the transfer. This is particularly important to prevent irreversible harm if the person is considered at risk.
  3. Compliance with Legal and International Standards: It is pertinent to note that even after the return order is legally passed, PNR should be strictly complied with along with other requirements of international law. 
  4. Human Rights and Dignity: Returns must respect the rights and dignity of individuals being returned. Humane treatment is essential, and the use of force must adhere to principles such as legality, necessity, proportionality, precaution, and liability. Lethal force is only justified when strictly unavoidable to protect life.
  5. Family Unity and Right to Private and Family Life: Return orders issued by a state must fully align with the principle of jointness of family. Efforts should be made to prevent involuntary family separations and families who aren’t a danger to a nation’s security.
  6. Voluntary Repatriation for Refugees: The return of refugees is seen as a viable choice when circumstances permit. The emphasis is on voluntary repatriation, with refugees having the right to decide to return to their state of origin Involuntary repatriation is considered akin to refoulement, violating the principle that forbids the deportation of war migrants to places that can ruin their lives. 
  • CONCLUSION

Therefore, the legal implications of forced return and deportation of war migrants are multifaceted and rooted in international and regional instruments designed to protect war migrants from violations of their natural rights. “The Principle of Non-refoulement (PNR)” serves as an important safeguard, prohibiting the forced return of individuals facing risks such as torture, persecution, or other grave violations of their rights. This principle is enshrined in various legal frameworks, including the Refugee Convention, ICCPR, and other international instruments.

The assurances in the event of expulsion emphasize the significance of due process, personalized evaluations, and safeguards against arbitrary or discriminatory measures. Generally, countries are not allowed to deport war migrants to territories in which their lives or freedom are at risk, with exceptions restricted to instances involving threats to national security or significant criminal convictions.

International law explicitly condemns collective expulsions, emphasizing the necessity of an objective examination of each individual’s case. “The European Court of Human Rights defines collective expulsion as a process that lacks such individualized assessment and violates principles of non-discrimination.”

Despite these legal safeguards, challenges persist, including administrative practices that may undermine the spirit of these principles. Legal advocacy, engagement with international human rights bodies, and adherence to due process are crucial in upholding the rights, safety, and dignity of war migrants facing forced return or deportation. In the broader context, the legal implications extend to issues of arbitrary displacement arising from conflicts, environmental factors, disasters, and development projects. “The Guiding Principles on Internal Displacement” provides a flexible framework for addressing the diverse reasons for internal displacement, emphasizing the need for a ‘case-by-case approach’.

Ultimately, adherence to these legal principles is essential not only for compliance with international law but also for promoting a humane and just treatment of war migrants. Ensuring that forced returns are carried out with respect for individual rights, procedural fairness, and non-discrimination is vital for upholding the principles of justice and protection in the face of complex challenges posed by armed conflicts and displacement.

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